Case offers snapshot of photo copyright issues
By Ashley Joannou on May 15, 2012 at 3:12 pm
It’s the tale of a photo of the aurora borealis which landed two competing Whitehorse tour companies in court.
A judge in Yukon small claims court has ordered a Whitehorse tour operator to pay $1,000 for copyright infringement to a rival company after posting a photograph of the northern lights on its website.
The case was brought to court after Thomas de Jager, who owns Yukon Wide Adventures, posted a photograph of the aurora taken by Beat Glanzmann, of Glanzmann Tours, who is also a professional photographer.
Both companies cater almost exclusively to German tourists and offer similar guided tours of the northern lights.
Around 2007, Glanzmann posted the photo he had taken 11 years earlier to his website to promote his tours.
In December 2011, the same photo appeared on the Yukon Wide Adventures website.
After Glanzmann found out his photo was being used, he contacted de Jager, who immediately removed the photo from the Yukon Wide website, court documents say.
The documents note that the defendant never sold nor ran any Northern Lights Tours while the photo was posted and therefore made no profit from the use of the photo.
de Jager said the infringement was inadvertent.
He testified that he found the photo among computer files he inherited when he bought the business in 2003. There was no indication of copyright and he assumed he could use the photo, he said.
Glanzmann argued that he did not post the photo online until 2007, and it wasn’t available anywhere else.
Therefore, he claims, the only way for de Jager to get the photo was if he downloaded it himself.
“At the end of the day, it remains unclear how the plaintiff’s aurora photo found its way onto the defendant’s computer and website,” Judge John Faulkner said in his decision, released Monday.
“However, it is not a defence to the present action that the copyright infringement was inadvertent.”
When it came to deciding how much the photo is worth, Glanzmann originally claimed some of his photos have sold for around $5,000 in licencing fees.
He later testified the photo could be worth as much as $20,000.
The judge called the larger claim “wildly inaccurate.”
He pointed out that some of the revenues he calculated in dollars were often paid in other currencies, such as German marks.
Faulkner called the photo in question “a very nice photo,” but noted similar pictures are available for nominal fees from Internet-based stock photo agencies.
This makes the potential value of this particular photo difficult to predict, he said.
In the end, Faulkner ruled Glanzmann’s losses have not been proved to exceed $1,000.
The two sides were also ordered to pay their own court costs.